Letter Dated April 20, 2010 To The Honorable John Conyers, Chairman of the House of Representatives Judiciary Committee from Representative Rick Boucher, member of the House Judiciary Committee and member of its Subcommittee on Courts and Competition Poli

Monday, July 5, 2010 - 01:00

Dear Chairman Conyers:

I am writing to express my strong opposition to H.R. 4115, the Open Access to Courts Act of 2009, and urge you not to schedule the bill for consideration by the Judiciary Committee.

The measure overturns two recent U.S. Supreme Court decisions, Ashcroft v. Iqbal (2009) and Bell Atlantic Corp. v. Twombly (2007), which clarify standards for the sufficiency of pleading in civil cases. I am concerned that the legislation would produce a dramatic change in pleading standards to the detriment of the federal court system. Rather than reverting to pre-Iqbal and Twombly pleading standards, as proponents of the bill claim, H.R. 4115 would raise substantially the governing standard for motions to dismiss. In doing so the measure ignores the years of precedent affirmed by the two Supreme Court decisions which struck a fair balance between the rights of plaintiffs and the need to prevent frivolous lawsuits.

There is a strong need to preserve limited court resources for legitimate filings. By prohibiting a judge from dismissing a complaint even if the allegations are implausible, the legislation would open the door to a large number of frivolous lawsuits that would take months to resolve at great costs both to the defendants and the courts. The current pleading standards serve as a gatekeeper for the federal courts to prevent frivolous court cases. They ensure that defendants are adequately placed on notice of the facts underlying the claim against them. Prohibiting federal judges from dismissing a case unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief" would require extended additional proceedings on frivolous cases, significantly increasing the burden on an already overburdened federal court system. Moreover, under that standard defendants would not be placed on sufficient notice of the nature of the claim against them to prepare adequately for their defense at this initial stage.

Under the current law, plaintiffs whose complaints do not state adequate facts to entitle them to relief have ample opportunities to restate their facts so as to overcome motions to dismiss. Under the Federal Rules of Civil Procedure, plaintiffs have wide latitude to amend their complaints as they wish to overcome arguments made in motions to dismiss. Given this broad judicial discretion and the ample opportunity it affords to plaintiffs to state additional facts which would entitle them to relief, it is apparent to me that legislation address the matter is wholly unnecessary.

Rather than improve access to the federal court system, I am concerned that H.R. 4115 would, by increasing the pendency and time to resolve frivolous litigation, instead deprive the courts of the time and resources needed to adequately consider well-founded complaints. For the reasons I have outlined in this letter, I urge you not to schedule H.R. 4115 for consideration by the Judiciary Committee.

Thank you for your time and attention to this matter. With personal regards and best wishes, I remain


Rick Boucher

Member of Congress

9th District, Virginia